Silenced: How Apostasy and Blasphemy Codes Are Choking Freedom Worldwide (97 page)

18
. In
Rex v. Taylor
(1676); quoted in Russell Sandberg and Norman Doe, “The Strange Death of Blasphemy,”
The Modern Law Review
71, no. 6 (2008): 972;
R v. Ramsay & Foote
and
R v. Bradlaugh
(1883), quoted in Robert Post, “Hate Speech,” 127; see also Sandberg and Doe, “Strange Death,” 973.

19
. Venice Commission 2008,
Analysis of the Domestic Law Concerning Blasphemy, Religious Insult and Inciting Religious Hatred in Albania, Austria, Belgium, Denmark, France, Greece Ireland, Netherlands, Poland, Romania, Turkey, United Kingdom
, Study no. 406/2006, October 10, 2008, 10–11,
http://www.venice.coe.int/docs/2008/CDL-AD(2008)026add2-bil.pdf
. This document is
Annexe II
to draft report CDL(2008)090 (http://www.venice.coe.int/docs/2008/CDL(2008)090-e.pdf), and will henceforth be cited as
Annexe II
.

20
. As of 2008, the law had not been used on behalf of religions other than the Greek Orthodox Church, although it specifically permits such use; see Venice Commission 2008,
Annexe II
, 46–47.

21
. Venice Commission 2008,
Annexe II
, 8, 30; ARTICLE 19 and INTERIGHTS,
Blasphemy and Film Censorship—Submission to the European Court of Human Rights in Respect of Nigel Wingrove v. the United Kingdom
, December 1995, p. 6,
http://www.article19.org/pdfs/cases/uk-wingrove-v.-uk.pdf
; Decision on Possible Criminal Proceedings in the Case of
JyllandsPosten
’s Article “The Face of Muhammad,” The Director of Public Prosecutions (Denmark), File No. RA-2006-41-0151, March 15, 2006,
http://www.rigsadvokaten.dk/media/bilag/afgorelse_engelsk.pdf
.

22
. David Rising, “MTV ‘Popetown’ Ad Draws Complaint,”
Associated Press (AP
), April 25, 2006,
http://www.highbeam.com/doc/1P1-122498671.html
. In Germany, various cases of anti-Christian blasphemy have been dismissed by the courts. Between 1985 and 1995, two cases
were rejected in Italy; see
Blasphemy and Film Censorship
, 8; “Blasphemy: European Laws and Cases,”
Caslon Analytics
, August 2008,
http://www.caslon.com.au/blasphemyprofile6.htm#italy
. In October 1997, the Catholic Archbishop of Melbourne, Australia, arguing that Andres Serrano’s art constituted blasphemous libel, sought an injunction against it but was turned down on a technicality, leaving the validity of the blasphemy law unclear. However, the presiding justice opined that, as a modern pluralist society, “Australia need not bother with blasphemous libel”; see Kate Gilchrist, “God Does Not Live in Victoria,”
Art Monthly
, December 1997,
http://www.artslaw.com.au/publications/Articles/97Blasphemy.asp
; for more on Australian blasphemy cases, see Caslon Analytics,
http://www.caslon.com.au/blasphemyprofile5.htm
.

23
. “Italy Gags ‘Porno’ Virgin Mary Sites,”
BBC News
, July 10, 2002,
http://news.bbc.co.uk/2/hi/europe/2119780.stm
; “Website’s Pope Pictures Offend Catholics,”
Guardian Unlimited
, April 29, 2005,
http://www.theage.com.au/news/Breaking/Website-shows-Pope-theNazi/2005/05/05/1115092599914.html
; Richard Owen, “Comedian Sabina Guzzanti ‘Insulted Pope’ in ‘Poofter Devils’ Gag,”
The Times
, September 12, 2008,
http://www.time-sonline.co.uk/tol/news/world/europe/article4732048.ece
.

24
. Venice Commission 2008,
Annexe II
, 48.

25
. Krysia Diver, “Cartoonist Faces Greek Jail for Blasphemy,”
The Guardian
, March 23, 2005,
http://www.guardian.co.uk/world/2005/mar/23/austria.arts
; Miron Varouhakis, “Greek Court Clears Austrian Cartoonist of Blasphemy,”
AP
, April 13, 2005,
http://www.encyclopedia.com/doc/1P1-107349748.html
; “Greek ‘Obscene Art’ Trial Delayed,”
BBC News
, June 3, 2005,
http://news.bbc.co.uk/2/hi/europe/4606533.stm
; Elinda Labropoulou, “Curator on Trial for ‘Obscene’ Art,”
The Independent
, June 4, 2005,
http://www.independent.co.uk/news/world/europe/curator-on-trial-for-obscene-art-492973.html
.

26
. The Council of Europe, based in Strasbourg, has forty-seven member countries. Founded on May 5, 1949, by ten countries, it seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals; see
http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en
.

27
. Dirk Voorhoof, “European Court of Human Rights—Case of
Tatlav v. Turkey
,”
IRIS
7, article 2 (2006): 3,
http://merlin.obs.coe.int/iris/2006/7/article2.en.html
.

28
. Convention for the Protection of Human Rights and Fundamental Freedoms, available via Council of Europe at
http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm
.

29
. In 1982, the European Court of Human Rights, which decides which cases will be heard by the Court of Human Rights, rejected an appeal from the publication
Gay News
and its editor Denis Lemon, who had received Britain’s first blasphemy conviction in over half a century after publishing a poem that depicted Christ as a homosexual; see
Whitehouse v Lemon
(1979) 2 WLR 281. The European Court similarly found that “the rights of others” justified the suppression of blasphemy in the 1994 case
Otto-Preminger Institut v. Austria
, which upheld Austria’s seizure of a film,
Das Liebeskonzil
(“Council in Heaven”), depicting God, Christ, and the Virgin Mary in a mocking and derogatory fashion. In
Wingrove v. UK
(1996), the European Court endorsed the government’s decision to uphold the banning of a film on blasphemy grounds; see Application No. 8710/79, X. Ltd. and Y v/United Kingdom, European Commission of Human Rights, May 7, 1982,
http://www.menschenrechte.ac.at/orig/95_2/Wingrove.pdf
. In another case concerning a pornographic film,
Visions
, that purportedly depicted the visions of sixteenth-century St. Teresa of Avila, the court again asserted “the right of citizens not to be insulted in their religious feelings.”

30
. Ian Cram, “The Danish Cartoons, Offensive Expression, and Democratic Legitimacy,” in
Extreme Speech and Democracy
, 319; Monica Macovei, “Freedom of Expression: A Guide to the Implementation of Article 10 of the European Convention on Human Rights,” Council of Europe Human Rights Handbook No. 2, pp. 54–55,
http://www.coe.int/t/dghl/publications/hrhandbooks/index_handbooks_en.asp
,; this summary also contains lengthy excerpts from the original court ruling.

31
.
Wingrove v. the United Kingdom
—Chamber Judgment, European Court of Human Rights, October 22, 1996,
http://www.strasbourgconsortium.org/document.php?DocumentID=370
.

32
. Ibid.

33
. Dirk Voorhoof, “Case of
I.A. v. Turkey
,”
IRIS
10, article 3 (2005): 3,
http://merlin.obs.coe.int/iris/2005/10/article3.en.html
. A three-judge minority argued that the European Court should “reconsider” its holdings in
Wingrove
and
Otto Preminger
on the grounds that the resulting jurisprudence gave too much support to conformist speech and the
pensée unique
.

34
. Nash,
Blasphemy in the Christian World
, 17, 181.

35
. “Not Dead, Just Sleeping: Canada’s Prohibition on Blasphemous Libel as a Case Study in Obsolete Legislation,”
University of British Columbia Law Review
141 (April 17, 2008): 193,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121932
.

36
. “Bid to Prosecute Rushdie Is Rejected,”
New York Times
, April 10, 1990,
http://www.nytimes.com/1990/04/10/books/bid-to-prosecute-rushdie-is-rejected.html?pagewanted=1
.

37
.
Whitehouse v. Lemon
[1979], quoted in Nash,
Blasphemy in the Christian World
, 5.

38
.
Regina v. Chief Metropolitan Stipendiary Magistrate
, ex parte Choudhury [1990] 3 W.L.R. 986, Queen’s Bench Division, effective April 9, 1990,
http://www.religlaw.org/template.php?id=2494
.

39
. As quoted in
Wingrove v. UK
(European Court of Human Rights, 1996),
http://www.strasbourgconsortium.org/document.php?DocumentID=370
.

40
. Nash,
Blasphemy in the Christian World
, 88–92.

41
. The UN Human Rights Committee in November 1996 upheld France’s Holocaust denial law on the grounds that it “served the respect of the Jewish community to live free from fear of an atmosphere of anti-Semitism” (Communication No. 550/1993, UN Human Rights Committee, adopted November 8, 1996, CCPR/C/58/D/550/1993, December 16, 1996),
http://www1.umn.edu/humanrts/undocs/html/VWS55058.htm
. Governments in the past two decades have made active use of such laws. The British Holocaust denier David Irving was fined approximately $6,000 by a German court in 1992, and in 2006, he was sentenced to a three-year jail term in Austria; see Veronika Oleksyn, “Holocaust Denier Gets Three Years in Jail,”
AP
, February 20, 2006. See also
http://www.vosizneias.com/50997/2010/03/10/budapest-hungary-holocaust-deniers-face-3-years-jail-under-new-law
; “Irving Expands on Holocaust Views,”
BBC News
, February 28, 2006,
http://news.bbc.co.uk/2/hi/europe/4757506.stm
. In February 2007, Ernst Zundel was convicted of inciting hatred against Jews and sentenced to five years’ imprisonment for activities including his contributions to a Holocaust-denying Web site; see Thomas Seythal, “Holocaust Denier Sentenced to 5 Years,”
AP
, February 15, 2007,
http://www.encyclopedia.com/doc/1Y1-103301044.html
. French laws of this kind were used to charge eminent Princeton historian Bernard Lewis, after a 1993 interview with
Le Monde
, in which Lewis had questioned whether the massacres of Armenians during World War I, which he said did occur, were the result of a deliberate genocidal plan by Ottoman authorities. Although three cases were dismissed, one civil suit resulted in his being condemned and fined for not being “objective,” since the European parliament had classified the massacres as genocide; see Gerard Alexander, “Illiberal Europe,”
Weekly Standard
, April 10, 2006,
http://www.weeklystandard.com/Content/Public/Articles/000/000/012/055sbhvq.asp
.

42
. Council of Europe,
Recommendation No. R 97(20) of the Committee of Ministers to Member States on “Hate Speech
,” October 30, 1997.

43
. Council of Europe,
Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems
, Strasbourg, January 28, 2003,
http://conventions.coe.int/treaty/en/Treaties/Html/189.htm
.

44
. American Convention on Human Rights,
http://www.oas.org/juridico/English/treaties/b-32.html
; Joanna Oyediran, “Article 13(5) of the American Convention on Human Rights,” in
Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination
, ed. Sandra Coliver (Colchester, U.K.: University of Essex Human Rights Centre,1992)), 33–34. The U.S. has signed but not ratified this treaty.

45
. Ian Black, “EU Agrees New Race Hatred Law,”
The Guardian
, April 20, 2007,
http://www.guardian.co.uk/eu/story/0,,2061767,00.html
; Council of the European Union, “Council Framework Decision on Combating Racism and Xenophobia,” 2794th Council meeting, Justice and Home Affairs press release, Luxembourg, 19–20 April 2007,
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/93741.pdf
.

46
. Ingrid Melander, “Britain Limits EU Religious Hatred Ban,” Reuters, April 17, 2007; Council of the European Union,
Council Framework Decision 2008/913/JHA of November 28, 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law
,
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008F0913:EN:NOT
.

47
. Council of the European Union,
Framework Decision on Combating Certain Forms of Expression of Racism and Xenophobia
. See also “Framework Decision on Combating Racism and Xenophobia,”
Europa
,
http://europa.eu/legislation_summaries/justice_freedom_security/combating_discrimination/l33178_en.htm
; Council of the European Union, “ ‘A’ Item Note,” from Permanent Representatives Committee to Council, re:
Proposal for a Council Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law
, November 26, 2008,
http://register.consilium.europa.eu/pdf/en/08/st16/st16351-re01.en08.pdf
; and Tarlach McGonagle, “Council of the European Union: Framework Decision on Racism Adopted,”
IRIS
2, article 5 (2009): 6,
http://merlin.obs.coe.int/iris/2009/2/article5.en.html
.